Huzaima Bukhari & Dr. Ikramul Haq
Every now and then we keep on hearing from higher judiciary echelons that government must run the affairs according to the Constitution of Pakistan and follow rule of law. While this is undisputable and uncontroversial command, there is also the need for ensuring an end to the long-drawn costly and time-consuming litigation. After restitution of unconstitutionally deposed judges, there was a great hope that our judicial system would improve—however, it has further deteriorated as hundreds of thousands of cases are pending and the system is almost choked. It is good to give advice to others, but a bad thing not to act upon the same in ones’ own case—auron ko nassehat khud mian fasihat (advice for others but not for oneself).
The right of access to justice to all is a well-recognised inviolable right enshrined in the Constitution of Pakistan. It must be read in wider terms to include speedy dispensation of disputed matters, the right to be treated according to law, the right to have a fair and proper trial and the right to have an impartial court or tribunal. Justice therefore can only be done if there is an efficient system to settle the rights and obligations of litigants within reasonable time. Judiciary should not only be independent but also competent and efficient.
The existing judicial system favours money power that can “buy” or “delay” justice. Slogans such as independence of judiciary and justice for all at their doorsteps in Pakistani milieu have proved to be mere clichés—even in the wake of restoration of pre-November 3, 2007 judiciary through popular mass campaign. The much-publicised National Judicial Policy 2009 has failed to improve anything—it was nothing but an attempt to cure the symptoms as no efforts have been made till today to make meaningful and effective structural changes removing the causes of illness. Sin inception this policy, the backlog in all courts have increased manifold.
It is an irrefutable fact that justice is not available to the poor and weaker sections of society—they cannot afford to pay lawyers and wait for umpteen years to get orders. The prevalent judicial system only protects the rich and mighty. Defenders of the system do not want any radical change as it would snatch all their privileges, benefits and perquisites. As stakeholders in the exploitative system, both judges and lawyers will never go for complete restructuring aimed for the benefit of common men.
The existence of anti-people power structures, whether in executive, judiciary or legislation, is the real root cause of problems of Pakistan. Unfortunately, there is no political party that has the agenda to dismantle these structures. On the contrary, the ruling classes—ashrafiya comprising military-bureaucracy clique, landed classes, wealthy politicians and unscrupulous businessmen—stand united under one banner; maintenance of status quo ensuring that real power is never shifted to masses.
We have failed to democratise our State apparatus. The existing system is inherently exploitative and anti-people—the ruling elites (ashrafiya) thrive on people’s hard-earned money and use force of police, taxation and judiciary to keep them under control. The empowerment of people politically and economically is the real essence of a true democracy but this would be a deathblow for the ruling classes. Thus, they work hand-in-hand to safeguard their mutual interests. In between, some in-fights amongst them do take place for grabbing more and more benefits and privileges, but they soon strike deals to “save the system”. They hoodwink the masses by arguing that “system” is important. They know that the perpetuation of existing system alone can help them to keep the masses subjugated.
For democracy, the sine qua non is accountability for all. Accountability must start from the judges who adjudge others. Judges must be above board—men of integrity, blameless, and free from all internal and external pressures. Since justice should not only be done but seen to have been done, the prime duty of a judge is to demonstrate this through his judgements and not by verbal exchanges in courts or statements on various occasions. The starting point of reforms in Pakistan should be accountability of all organs of State. In a State where the politicians, high-ranking civil and military officials and judges get state lands as bounties, do not make public declaration of assets owned by them and their relatives, there cannot be hope for true democracy, rule of law and responsible governance. The civil society and media should come forward to force the parliament to abdicate all laws of secrecy and enact a comprehensive legislation for right to information as enshrined in Article 19A of the Constitution coupled with strict accountability by an independent body.
In Pakistan we have laws (sic) for declaration of assets and liabilities by government servants and politicians. In these declarations, the present value of the property and how they have been acquired, however, are not revealed. These must be made public along with their tax declarations. In India, there was a sharp criticism over asset disclosures of the judges and their spouses. It was demanded that information about the assets of other close relatives, like sons and daughters, was also important in the Indian context. It is also important in Pakistani context as near and dear ones take advantage of positions of their relatives in power—the case of Arsalan Iftikhar magnifies this requirement.
In India, the declarations, made under a Supreme Court resolution of May, 1997, were criticised being only in partial conformity with the requirements laid down therein. It was campaigned that declaration, in fact, underlined the need for a law that “makes the disclosure mandatory and opens to the public, lays down in detail what are the assets to be declared, how the disclosure is to be made and who all should come under its purview”. It was demanded by Indian civil society and media that the consequences of wrong declarations should also be specified. In Pakistan we need similar laws for judges, government officials, elected representatives and holders of public office.
The issue of accountability has assumed greater relevance in today’s Pakistan. It is no longer confined to public disclosures of assets by people in position. The public and media must demand right-to-information law authorising them to know about the sources of acquiring assets, specifically lucrative plots from government on which no tax is paid under section 13(11) of the Income tax Ordinance, 2001. In the light of Article 19A of the Constitution, it is now fundamental right of every citizen to know about the assets and tax declaration of persons holding any government post or public office or where information is of public importance. Even c6ourts cannot curtail this fundamental right as Article 19A of Constitution says: “Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law.” We need to counter any move by courts to curtail this fundamental right in the garb of contempt of court law which cannot overrule this constitutional command. It is necessary if all the four pillars of State—Legislation, Judiciary, Executive and Media—have to be accountable to the public at large. Right to information, access to public record and free availability of what is owned by privileged classes must be assured—this alone can help fight corruption, abuse or excessive use of powers and malpractices in all domains.
As a first step, we need a comprehensive legislation for judicial accountability and reforms entailing setting up an independent and credible institution for the appointment of judges, entertaining complaints against them, criminal investigation of judges if they indulge in corruption, amendment of the Contempt of Courts Law by removing “scandalising and lowering the authority of the Court” from the definition of “contempt” and implementation of right-to-information law to all organs of State, including the judiciary which is being thwarted by self-serving rules framed and judgements delivered. These steps effectively stonewall information about the administrative functioning of the judiciary
It is vital for the success of democracy to go for all-out reforms rather than patchwork or cosmetic changes here and there. For example in judiciary, we are still following the outdated procedures and methods whereas many countries have adopted e-system for filing of cases and their speedy disposal through fast-track follow up. Since dispensation of justice is the main pillar of democracy, the foremost need is elimination of unnecessary litigation and facilitating smooth running of affairs between the State and its citizens. Once both learn to act within the four corners of law, present massive litigation will diminish. It is shameful that presently the State itself is the main litigant. It usurps the rights of people and then drags the poor citizens in courts. Thus, a national commission should be established to not only determine the reasons for this sorry state of affairs but also to suggest reforms to stop unnecessary litigation and ways for speedy disposal of cases.
The writers, tax lawyers and partners in HUZAIMA & IKRAM (Taxand Pakistan), are Adjunct Professors at Lahore University of Management Sciences (LUMS).